In United States v. Oskamac, No. 14-15205 (Aug. 18, 2017) (Hull, Marcus, Martin), the Court affirmed the defendant's terrorist-related convictions and 480-month sentence for attempting to use weapons of mass destruction against U.S. persons or property and possessing an unregistered firearm.
The defendant raised four arguments on appeal. First, and primarily, he argued that the court erred by denying him access to certain FISA materials -- namely FISA applications, supporting documents, DOJ certifications, and resulting FISA Court orders -- in order to determine whether the searches and surveillance was legal. After outlining the relevant statutory provisions, as well as the deferential "minimal scrutiny" standard of review for FISA certifications, the Court rejected the defendant's argument, which primarily sought access to the certifications. The Court, like the district court, conducted an in camera and ex parte review of the undisclosed FISA materials and evidence, and concluded that all of the legal requirements were satisfied. The Court concluded that the district court did not abuse its discretion by not disclosing those materials and evidence to the defense.
Second, the Court also rejected the defendant's related argument that denying him access to the FISA materials violated the Confrontation Clause. Although the defendant did not raise the argument below, and devoted minimal space to it on appeal, the Court exercised its discretion to address and reject it. In doing so, it found that the defendant received wide latitude to confront and cross examine witnesses, and his Confrontation Clause rights were not violated by his inability to look for potentially favorable evidence in pretrial discovery. "The ability to cross-examine witnesses does not include the power to require the pretrial disclosure of all information that might be potentially useful in contradicting unfavorable testimony."
Third, the defendant argued that the prosecutor's misstatement during closing -- that the jury should not consider a lack of evidence (such as FBI reports and surveillance logs) -- prejudiced him and denied him due process. The court rejected that argument because, although the prosecutor's statement was incorrect, the court mitigated the prejudice by curatively instructing the jury that reasonable doubt may arise from a lack of evidence. And the Court found that the misstatement was both isolated and likely accidental.
Fourth, the defendant argued that the government engaged in sentencing factor manipulation because the government introduced machine guns and explosives to him. After emphasizing the difficulty of establishing such manipulation, the Court found that the defendant, not the government, introduced the subject of weapons of mass destruction. Alternatively, the Court rejected that argument under plain error review, since the defendant below had argued "sentencing entrapment" rather than "sentencing factor manipulation."
Judge Martin concurred in the judgment. She agreed with the outcome, but briefly observed that the majority's standard on the FISA issue exceeded the facts of the case, which was limited to a challenge to the certifications. She also noted that, because the defendant had abandoned his confrontation clause argument, she would not have addressed it.